Tempelman v. Potvin ( 1993 )

USCA1 Opinion

          December 20, 1993     [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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          No. 93-1434

            


                              ANDREW TEMPELMAN, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                                CECILE POTVIN, ET AL.,

                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE


                   [Hon. Joseph A. DiClerico, U.S. District Judge]

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                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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               Andrew and Priscilla Tempelman on brief pro se.
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               Michael  L.  Paup,  Acting Assistant  Attorney  General, Tax
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          Division,  Gary  R.  Allen, Charles  E.  Brookhart  and  Scott P.
                     _______________  ______________________       ________
          Towers, Attorneys, Tax Division, Department  of Justice, on brief
          ______
          for appellees.



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                 Per Curiam.   Plaintiffs appeal from the dismissal  of a
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            complaint  in  which  they  advanced   three  related  claims

            pertaining to a tax lien.  As the lien has now been lifted (a

            fact first disclosed  only after judgment by way  of a motion

            for  reconsideration), their claim under 28  U.S.C.   2410 to

            "quiet title"  to property is  now moot.   In turn,  we agree

            with the district court that,  as set forth in the complaint,

            both the refund claim (brought under  28 U.S.C.   1346 and 26

            U.S.C.   7422) and the damages claim (brought under 26 U.S.C.

               7432) were barred  on jurisdictional grounds,  given that,

            inter alia, the underlying assessments were never paid.  See,
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            e.g., McMillen v. U.S. Dep't  of Treasury, 960 F.2d 187, 188-
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            90 (1st Cir. 1991) (per  curiam).  And considering the timing

            of the  disclosure as  to the lien's  release, we  cannot say

            that the court  abused its discretion  in denying the  motion

            for  reconsideration,  particularly  since  such  denial  was

            without prejudice to the filing of a new action  under   7432

            (or some related provision) with regard to such release.  

                 We  need not now decide whether the normal prerequisites

            to such a suit--exhaustion of administrative remedies, see 26
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            U.S.C.      7432(d)(1),   and  payment   of  the   underlying

            assessment, see McMillen,  960 F.2d at 190--might  be subject
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            to  relaxation in  cases  where the  lien has  been released.

            See,  e.g., Information Resources, Inc. v. United States, 950
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            F.2d  1122, 1125-27  (5th Cir.  1992).   Nor  need we  decide



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            whether, to  the extent  that the assessments  at issue  here

            involved only corporate taxes, plaintiffs would have standing

            as private individuals to pursue  such relief.  See, e.g., 26
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            U.S.C.   7432(a)  (authorizing suit by taxpayer  for improper

            failure to release lien "on property of the taxpayer"); In re
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            Las  Colinas  Devel.  Corp.,  585  F.2d  7  (1st  Cir.  1978)
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            (corporations  can appear in  court only when  represented by

            counsel), cert. denied, 440 U.S. 931 (1979). 
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                 We have reviewed plaintiffs' remaining  claims on appeal

            and find them without merit. 

                 Affirmed.    
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